OPINION & ORDER Before the Court is Defendants’ motion to dismiss for failure to state a claim. (Doc. 17.) Also pending, in this case removed from New York Supreme Court, Orange County, is Plaintiff’s cross-motion to dismiss for lack of subject matter jurisdiction. (Doc. 20.) For the reasons stated below, Plaintiff’s motion is DENIED and Defendants’ motion is GRANTED. I. BACKGROUND A. Facts For purposes of Defendants’ motion to dismiss for failure to state a claim, I accept as true the facts, but not the conclusions, set forth in the Complaint. (Doc. 1-1 (“Compl.”).)1 Plaintiff Waiting Room Solutions, Limited Liability Limited Partnership (“Waiting Room”) is a limited liability limited partnership organized under the laws of the U.S. Virgin Islands with its principal place of business in New York. (Compl. 7; NOR 6.)2 Waiting Room provides software products and other technology for the medical industry. (Compl.
1, 18.) Defendant Excelsior Insurance Company (“Excelsior”) is a stock insurance company organized under the laws of New Hampshire with its principal place of business in Massachusetts. (NOR 8.) Defendant Liberty Mutual Group Inc. (“Liberty Mutual”) is a corporation organized under the laws of Massachusetts with its principal place of business in Massachusetts. (Id. 9.) 1. The Excelsior Policy Waiting Room procured a Commercial Protector Policy, Policy No. BOP8050067, (Doc. 18-2 (“Ins. Policy”)), underwritten by Excelsior (the “Excelsior Policy,” “Insurance Agreement,” or “Agreement”), covering the period July 20, 2015 to July 20, 2016. (Compl. 2; Ins. Policy at 6.)3 The Excelsior Policy’s liability insuring agreement (pursuant to the New York – Amendatory Endorsement) provides, in pertinent part: We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury”, “property damage”, “personal injury” or “advertising injury” to which this insurance applies. We will have the right and duty to defend any “suit” seeking those damages even if the allegations of the “suit” are groundless, false or fraudulent. We may at our discretion investigate any “occurrence” or offense and settle any claim or “suit” that may result. (Ins. Policy at 94.) The insurance applies to bodily injury and property damage only if “[t]he ‘bodily injury’ or ‘property damage’ is caused by an ‘occurrence’ that takes place in the ‘coverage territory,’” (id. at 80), which includes “[t]he United States of America (including its territories [and] possessions), Puerto Rico and Canada,” (id. at 88), and “occurs during the policy period,” (id. at 80). The insurance applies to “‘personal injury’ caused by an offense arising out of your business, excluding advertising, publishing, broadcasting or telecasting done by or for you;…but only if the offense was committed in the ‘coverage territory’ during the policy period.” (Id.) “Bodily injury” is defined as “physical injury, sickness or disease sustained by a person,” including “mental anguish, mental injury, shock, fright or death that results from such physical injury, sickness or disease.” (Id. at 71.) “Personal injury” is defined as injury, other than ‘bodily injury’ arising out of one or more of the following offenses: a. False arrest, detention or imprisonment; b. Malicious prosecution; c. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, by or on behalf of its owner, landlord or lessor; d. Oral or written publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services; or e. Oral or written publication of material that violates a person’s right of privacy. (Id. at 89.) “‘Occurrence’ means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” (Id.)4 2. The Underlying Action This matter arises out of what was originally several state court lawsuits filed by five former Waiting Room employees (the “Underlying Plaintiffs”) against Waiting Room in 2016 and 2017, which the state court consolidated into one action on September 25, 2017 (the “Underlying Action”). (See Doc. 21-1.) The Underlying Plaintiffs allege that Waiting Room’s employee, Corey Shuster, who provided information technology services to the company, placed a video camera disguised as a pen in the women’s restroom at Waiting Room’s offices. (See Doc. 18-3
